# Pradeep Kumar Singh @ Atma Singh & Anr v. A.D.J., Barabanki & Ors

- **Citation:** (2021) 9 ILRA 824
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-17
- **Case number:** Misc. Single No. 3001 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-singh-atma-singh-anr-v-a-d-j-barabanki-ors-47403
- **Pages:** 10

## Headnote

A. Civil Law - Small Causes Court Act,
1887: Section 17 - The Court held that
on reading proviso to Section 17 of the
Act it is observed that if the deposit
made by the tenant falls short of amount
required to deposited, the tenant will be
deprived of the benefit, even if shortfall
in such deposit was because of tenant's
ignorance
or
without
any
malafide
intention. Thus, due to the aforesaid
reason application for setting aside the
ex parte decree will not be maintainable.
(Para 27)

The petitioner had deposited Rs. 19,200 only
and had made no application to the court saying
that they were ready and willing to deposit
security for any amount which was further
found due on them. (Para 28)

Writ Petition Rejected. (E-10)

List of Cases cited:

## Text

824 INDIAN LAW REPORTS ALLAHABAD SERIES
custody of a minor. As is evident, the facts
and circumstances of aforesaid case are
clearly
distinguishable
and
are
not
applicable in the present case.

18. In view of aforesaid, this Court is
of the considered opinion that petitioner
being father of the minor and natural
guardian in terms of Section 6 of the Act of
1956 would be entitled to custody of the
minor particularly since it is admitted that
he has a better financial condition to look
after the minor himself.

19. In view of aforesaid, the petition
for habeas corpus succeeds and is allowed.
Consequently, it is ordered that the minor
be set at liberty by opposite parties 4 to 7
who shall deliver custody of the minor,
Garv Mishra to petitioner Anurag Mishra
within four weeks from the date of this
judgment. In case custody of the minor is
not delivered by opposite parties 4 to 7 or
anyone claiming through them, the learned
Chief Judicial Magistrate, Lakhimpur Kheri
shall cause the minor to be delivered to
petitioner Anurag Mishra by employment
of
necessary
force
through
the
Superintendent
of
Police,
Lakhimpur
Kheri, who is directed to act in the aid of
learned
Chief
Judicial
Magistrate,
Lakhimpur Kheri in the matter. It is further
directed that on the first Sunday of every
month, between 10.00 a.m. to 2.00 p.m.,
petitioner Anurag Mishra shall permit
opposite parties 4 to 7 to meet the minor
Garv Mishra at his residence and during
each such visit, petitioner Anurag Mishra
shall extend all due courtesies to opposite
parties 4 to 7 and will facilitate the meeting
between them.

20. Let this order be communicated
forthwith by the Registrar to learned
District Judge, Lakhimpur Kheri, learned
Chief Judicial Magistrate, Lakhimpur Kheri
and
the
Superintendent
of
Police,
Lakhimpur Kheri for consequential action.
----------
(2021)09ILR A824
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.08.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 3001 of 2021

Pradeep Kumar Singh @ Atma Singh &
Anr. ...Petitioner
Versus
A.D.J., Barabanki & Ors. ...Respondents

Counsel for the Petitioner:
Ghufran Hussain

Counsel for the Respondents:
Pankaj Kumar Verma

A. Civil Law - Small Causes Court Act,
1887: Section 17 - The Court held that
on reading proviso to Section 17 of the
Act it is observed that if the deposit
made by the tenant falls short of amount
required to deposited, the tenant will be
deprived of the benefit, even if shortfall
in such deposit was because of tenant's
ignorance
or
without
any
malafide
intention. Thus, due to the aforesaid
reason application for setting aside the
ex parte decree will not be maintainable.
(Para 27)

The petitioner had deposited Rs. 19,200 only
and had made no application to the court saying
that they were ready and willing to deposit
security for any amount which was further
found due on them. (Para 28)

Writ Petition Rejected. (E-10)

List of Cases cited:

1. Kedar Nath Vs Mohan Lal Kesarwari & ors.
AIR 2002 SC 582
9 All Pradeep Kumar Singh @ Atma Singh & Anr. Vs. A.D.J., Barabanki & Ors.
825
2. Raj Kumar Makhija & ors. Vs M/s SKS & Co. &
ors. 2000 (3) ARC 117

3. Ramesh Kumar Vs Kesho RamAIR 1992 SC
700

4. Parimal Vs Veena AIR 2011 Supreme Court
1150

5. Ram Bharose Vs Ganga Singh 1931 ALJR
1049

6. Naseeruddin & ors. Vs SItaram Aggarwal JT
2003 (2) SC 56

7. Shakeel Ahmad Vs Zameer Ahmad Siddiqui &
anr. SCC Revision No. 39 of 2016

8. Smt. Sushma Agarwal Vs D.J., Agra & 2 ors.
Article 227 No. 4089 of 2018

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard Sri Ghufran Hussain, learned
counsel for the petitioners and Sri Sudeep
Seth, learned Senior Counsel assisted by
Sri Pankaj Kumar Verma, learned counsel
appearing for landlord.

2. This writ petition has been filed
challenging the order dated 20.10.2020
passed by opposite party no.1/ Additional
District Judge, Court no.2, Barabanki in
Small Causes Revision No.1 of 2019 .

3. It is the case of the petitioners that
the petitioners were the initially tenant of
one shop situated at Malgodam Road,
Haidergarh, District Barabanki of Sri
Baldev Prasad Khare. Thereafter wife of
petitioner no.1 bought the shop in question
from the grandson of Beldav Prasad Khare,
the original landlord. The mother of
respondent nos. 2 and 3 filed a suit for
eviction before the Civil Judge (J.D.),
Court No.13, Barabanki on the ground that
she is the owner of the disputed shop
without disclosing the source of title and
also mentioning the wrong boundaries of
the tenanted premises.Petitioners appeared
and filed the written statement denying the
ownership of plaintiff and saying that they
are not the tenants of the shop but had
bought the property for Rs.50,000/- from
Sri Arind Khare, the legal heir of the earlier
owner and landlord. The opposite party
no.2 admitted the existence of sale-deed
dated 16.01.2013 executed by Arivind
Khare, grandson of Sri Baldev Prasad
Khare in favour of the wife of petitioner
no.1 when they filed the Suit for
cancellation of sale-deed before learned
Civil Judge ( S.D.) Court no.20 ,
Barabanki. The Said suit is pending for
disposal where the petitioner had filed
written statement and order of maintenance
of status quo has been passed therein on
08.03.2017.

4. It is the case of the petitioners, as
argued
by
learned
counsel
for
the
petitioners that the petitioner no.1 was
doing parivi of SCC case and he became ill
and was unable to contact his lawyer and
the SCC Suit proceeded ex parte on
25.09.2017 and was ultimately decreed on
18.12.2017.

5. It has been argued by learned
counsel for the petitioners that respondent
nos.2 and 3 was duty bound to reveal
before the Small Causes Court about the
proceedings of Regular Suit no. 27 of 2015
and interim order granted therein on
08.03.2017 passed for maintenance of
status quo. However, they concealed the
interim order from the learned trial court as
a result whereof the SCC suit was decreed
in their favor.

6. It has been argued by learned
counsel for the petitioners that SCC suit
826 INDIAN LAW REPORTS ALLAHABAD SERIES
was not maintainable as the Court of Small
Causes has no power to decide the intricate
question of title and ownership and once
the title and ownership was denied and
tenancy was also specifically denied then
SCC Court had no jurisdiction to decide the
case. Also an interim order had been passed
in Regular Suit No.27 of 2015 and the suit
for cancellation of sale-deed of was
pending before civil court.

7. Learned counsel for the petitioners
has placed reliance Section 23 of the
provisions of Small Causes Court Act
(herein after referred to as ''Act'). To
substantiate his arguments, it has been
submitted that respondent nos. 2 has
initiated criminal proceedings by filing an
F.I.R.
under
Sections
406,419,420,
452,504, 506 I.P.C. Police Station Kotwali,
against petitioner no.1 and wife of
petitioner no.1 Smt. Sita Singh, who had
bought the property in question. This fact
shows that there was technical question of
fact involving ownership and civil and
criminal litigation were going on. The
Small Causes Court should have returned
the plea under section 23 of the Act.

8. It has been submitted that after the
suit was decreed ex-parte, execution case
was filed by respondent no.2 and 3 and on
receipt of summons of the execution case
on 22.01.2019, the petitioners moved an
application under Order IX Rule 13 of
C.P.C.
alongwith
application
for
condonation of delay under Section 5 of the
Limitation Act and also moved a separate
application under Section 17 of the Act
praying for recall of the order. It has been
submitted that learned trial court after
hearing the parties rightly allowed the three
applications in favour of the petitioner on
06.09.2019.Thereafter petitioners deposited
an amount of Rs.21161/-on 07.09.2019.
However, respondent nos. 2 and 3 filed
SCC Revision No. 1 of 2019 which was
allowed on hyper technical ground without
considering the facts that SCC Court has no
jurisdiction to entertain the suit and pass
the decree ex parte.

9. It has been argued by learned
counsel for the petitioners that opposite
party no.1 has failed to appreciate that it
was not a simple tenant and landlord
dispute, rather it was a dispute relating to
title and declaration as to who was the real
owner of the property in question.

10.

Learned
counsel
for
the
petitioners has also argued that opposite
party
no.1
failed
to
appreciate
the
provisions of Section 17 of the Act when it
opined that application under section 17 of
the Act should be moved within 30 days
from the date of knowledge of decree
passed ex-parte, and the decreetal amount
alongwith interest should be deposited
before under Order IX Rule 13 C.P.C.
application is considered by the learned
trial court.

11.

Learned
counsel
for
the
petitioners has placed reliance upon the
judgment rendered by coordinate Bench of
this Court in SCC Revision No. 39 of 2016
(Shakeel Ahmad Vs. Zameer Ahmad
Siddiqui
and
another)
decided
on
05.04.2016 wherein this Court considered
the provisions of Section 17 of the Act and
also the law settled by Hon'ble Supreme
Court in the case of Kedar Nath Vs. Mohan
Lal Kesarwari and others AIR 2002 SC 582
wherein the Court had interpreted the scope
of the proviso of sub- section (1) of Section
17 read with provision of Order IX Rule 13
C.P.C. as well as Section 20 (2) of the U.P.
Act no.13 of 1972 and held that the proviso
is mandatory, the application seeking to set
9 All Pradeep Kumar Singh @ Atma Singh & Anr. Vs. A.D.J., Barabanki & Ors.
827
aside
decree
or
review
must
be
accompanied by a deposit of decretal
amount in Court. The application for
dispensation of deposit can be filed upto
the date of filling the application for setting
aside the decree, and the proviso does not
provide for extension of time. The court
considered that the Order IX Rule 13
C.P.C. application had been moved by the
tenant/ revisionist for setting aside ex parte
decree before depositing the decretal
amount as provided under Section 17 of the
Act, therefore, Misc Case No. 2C of 2008
was rejected. However since the parties had
agreed before the revisonal court. The
Court had directed that if the revisionist
deposits entire decreetal amount, the
application under Order IX Rule 13 C.P.C.
may be considered in accordance with law.

12.

Learned
counsel
for
the
petitioners has placed reliance upon a
judgment rendered by me in the matter
under Article 227 No. 4089 of 2018 (Smt.
Sushma Agarwal Vs. District Judge, Agra
and 2 others ) decided on 30.05.2018
wherein this Court after considering the
Division Bench's judgment of Supreme
Court in Raj Kumar Makhija and others Vs.
M/s SKS and Co. and others, 2000 (3) ARC
117 observed that it is duty of the applicant
to calculate the correct decretal amount as
per the decree and Court is not required to
get the decretal amount calculated for the
applicant. The Court can ignore the
shortfall in deposit of a negligible amount
on the principle of deminiuis. The Court
had observed the bonafide intent of the
tenant had undoubtedly been established in
depositing the decreetal amount alongwith
cost and interest and in compliance of the
Section 17 of the Act and it is the relevant
factor that has to be considered by the
Court while allowing the application under
Section 17 of the Act and the section itself
was added to avoid possibility of a litigant
taking advantage of recall application being
moved
without
first
establishing
his
bonafide to pursue the litigation further,
and to avoid the decree holder from being
prejudiced due to the pendency of the
litigation. The tenant cannot be non-suited
on a hyper technical ground.

13. Learned counsel for the petitioner
to
substantiate
his
arguments
that
subsequent event ought to have been
brought to the notice of the learned Small
Causes Court has referred the judgment
rendered by Hon'ble Supreme Court in
Ramesh Kumar Vs. Kesho Ram, AIR 1992
SC 700 wherein para-4 it has been observed
that the normal rule is that in any litigation
the rights and obligations of the parties are
adjudicated upon as they obtained at the
commencement of the lis. But this is
subject to an exception that whenever
subsequent documents of fact or law which
have a material bearing on the entitlement
of the parties to relief or on aspects which
bear on the molding of the relief occur, the
court is not precluded from taking a
''cautious cognizance' of the subsequent
changes to mold the relief.

14. Learned counsel appearing on
behalf of respondents however, has pointed
out the plaint in suit filed by Gulab Devi
mother of respondent no.2 wherein Smt.
Gulab Devi has stated clearly that she had
bought tenanted premises on 29.06.2009
and became its owner and landlord and the
tenant had not given any rent to her till the
date of filing of SCC suit for eviction in
August, 2012. It has also been stated in the
plaint that notice under section 106 of the
Transfer of Property Act was served upon
the tenant on 16.08.2012 till date they did
not deposit any rent in favour of landlady.
In the plaint, it was also stated that that
828 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant no.1/Pradeep Kumar Singh was
initially tenant but later on he sub-let the
shop in question to defendant no.2/ Ram
Gopal Singh .

15. It has been argued by Sudeep Senth
that in the written statement that was fled by
defendant They stated in para-15 that the
owner and landlord of the shop in question
was initially Babu Baldev Prasad Khare
Advocate, and after his death his son and
grand sons became owners of the property
and defendant no.2 had bought the property
from Arvind Khare son of late Satyadav
Prasad Khare for a sum of Rs. 50,000/- and
that before sale-deed was executed, defendant
no.1 was the tenant of the property in
question and that plaintiff/ Smt. Gulab Devi
was not landlord or owner of the disputed
shop. The written argument was filed by both
the defendants jointly on 21.05. 2013, while
the sale-deed they had relied upon was
executed by Sri Arvind Khare on 16.01.2013
after filing of the SCC Suit in August, 2012.
The sale-deed was made out by Sri Arvind
Khare in favour of Sita Singh , wife of
defendant no.1,and not in favour of defendant
no.2 and a misleading reply had been given in
the written statement filed by the defendant
nos. 1 and 2 in SCC Suit .

16. Learned counsel for the respondent
nos. 2 and 3 has also referred to a Will
executed by Sri Baldev Prasad Khare dated
16/17.12.1985 in favour of his five sons and
daughter of Krishna Dev Khare and his sister
Sobha Srivastava children of Baldev Prasad
Khare had inherited the disputed shops. It has
been argued that sale deed of respondent no.2
and 3 is of a prior date i.e. 29.06.2009,
whereas sale deed of the petitioners is of a
later date i.e. 16.01.2013.

17. It has been argued by Sri Sudeep
Seth that a perusal of the application filed
under section 17 of the Act as well as an
application
under
Section
5
of
the
Limitation Act and Order IX Rule 13
C.P.C. filed by the petitioner on 15.03.2018
would show that the knowledge of the ex
parte decree dated 18.10.2017 was derived
by the petitioners on 22.01.2018 or when
the summons of execution case was served
upon them on 18.01.2018 However, the
petitioners did not file any application for
recall nor deposit the amount under Section
17 of the Act within 30 days from the
knowledge of ex parte decree. They waited
till 15.03.2018 to file three applications
simultaneously. Respondent nos. 2 and 3
raised
an
objection
regarding
maintainability of the application under
Section 17 of the Act before the Small
Causes Court which also noticed that
shortfall was there in the amount that the
petitioners had offered to deposit, yet the
application was allowed. In the order
passed by District Judge had correctly
appreciated the law with regard to Section
17 of the Act and Order IX Rule 13 C.P.C.
on the basis of judgment rendered by this
Court by a Division Bench in Raj Kumar
Makhija and others (supra) and Vijay
Kumar Agarwal Vs. Subhash Chandra and
another, 2018 (141) RD 273 and also the
Supreme Court's Judgment rendered in
Parimal Vs. Veena, AIR 2011 SC 1150 that
''sufficient cause' has to be shown for
condonation of delay and allowing the
application for recall.

18.

Learned
counsel
for
the
respondent has argued that on the basis of
provisions of Article 123 of the Schedule
attached to the Limitation Act, that
limitation for filing an application for
setting aside ex parte decree, is 30 days
and,therefore, application under Section 17
of the Act should also be filed within 30
days from the date either of the decree, or
9 All Pradeep Kumar Singh @ Atma Singh & Anr. Vs. A.D.J., Barabanki & Ors.
829
from the date of knowledge of ex parte
decree.

19. It has been submitted that
petitioners did not deposit the decretal
amount alongwith interest as directed by
learned Small Causes Court in decree dated
18.10.2017.They only offered to deposit
through
challan
the
decretal
amount
regarding arrears of rent to the tune of Rs.
14400/- and cost of litigation to the tune of
Rs. 4800/- i.e. total Rs.19200/- without
taking into account 12% interest incurred
thereon from the date of decree till the date
of offer to deposit. Learned counsel has
read
out various paragraphs
of
the
Judgment of Raj Kumar Makhija and
others (supra) and also of the judgment
rendered by by this Court in Vijay Kumar
Agarwal (supra) to say that there is
limitation of 30 days of filing of application
under Section 17 of the Act which has to be
respected.

20. He has also argued that learned
District Judge was considering only the
legality of the order dated 06.09.2019,
allowing the application under Section 17,
Order IX Rule 13 and Section 5 of the
Limitation Act. He was not supposed to go
into the merit of the decree and the decree
was also not challenged before the writ
petition.The arguments raised by learned
counsel for the petitioners with regard to
merit of their case and that the learned trial
court should have returned the plaint under
section 23 of the Act are irrelevant the
controversy being decided by this Court in
this writ petition.

21.

Learned
counsel
for
the
respondents has also pointed out that
sufficient cause as has been explained in
the judgment rendered in the case of
Parimal and others (supra) judgments of
this Court relating to of bonafide attempt
by the defendant who appeared later and
they do not give any relaxation to a
defendant, who having knowledge of the
proceedings deliberately avoids appearing
in the case. He has pointed out from the
Medical Certificate issued by doctor
concerned to the petitioner no.1 on page 91
and page 93 of the paper book that they
have been issued referring to future dates
and also that this fact has been considered
by the District Judge to come to the
conclusion that medical certificates are
apparently fabricated documents .

22.

Learned
counsel
for
the
respondents have also pointed out that in
regular suit filed for cancellation of saledeed the defendants continued to appear.
The petitioner no.1 in fact appeared on
three dates during the time when he was
allegedly ill in between 16.07.2017 to
14.01. 2018.

23. In Parimal versus Veena AIR
2011 Supreme Court 1150 Supreme Court
was considering a case where summon was
tried to be served upon the wife of the
Appellant twice. Each time the process
server reported that she read the summons
but refused to accept it. The court thereafter
directed publication in the newspaper
which was sent to her address. The
newspaper was placed on record and not
rebutted by the wife in any manner. After
service by publication as well as by
affixation the case was proceeded ex parte
in the divorce proceedings. The marriage
was dissolved by the Learned trial court.
Two years after passing of the decree the
appellant got married. He had children
from the second marriage. After expiry of
four years of passing of the ex parte decree
the wife moved an application under Order
IX rule 13 of the CPC along with an
830 INDIAN LAW REPORTS ALLAHABAD SERIES
application under Section 5 of the Indian
limitation Act for condonation of delay in
moving the same. The trial court examined
the issues at length and came to the
conclusion that the respondent wife had
miserably failed to establish the grounds
taken by her in her application to set aside
ex parte decree. The application was
rejected. However the Delhi High Court
allowed the First Appeal. Against such
order,
the
appellant
approached
the
Supreme
Court.The
Supreme
Court
considered the language of Order IX Rule
13 and the proviso thereof and then
observed in paragraphs 8,9 and 12 as
follows :-

"8. Shri M.C. Dhingra, learned
counsel appearing for the appellant has
submitted that the service stood completed
in terms of statutory provisions of CPC by
the refusal of the respondent to take the
summons. Subsequently, the registered post
was also not received by her as she refused
it. It was only in such circumstances that
the trial court entertained the application
of the appellant under Order 5 Rule 20
CPC for substituted service. The summons
were served by publication in the daily
newspaper National Herald published from
Delhi which has a very wide circulation
and further service of the said newspaper
on the respondent wife by registered post.
The High Court committed a grave error by
taking into consideration the conduct of the
appellant subsequent to the date of decree
of divorce which was totally irrelevant and
unwarranted for deciding the application
under Order 9 Rule 13 CPC. More so, the
High Court failed to take note of the hard
reality that after two years of the ex parte
decree the appellant got married and now
has two major sons from the second wife.
Therefore, the appeal deserves to be
allowed and the judgment impugned is
liable to be set aside.

9. On the contrary, Ms Geeta
Dhingra, learned counsel appearing for the
respondent wife has vehemently opposed
the appeal, contending that once the
respondent wife made the allegations of
fraud and collusion of the appellant with
the postman, etc. as he succeeded in
procuring the false report, the burden of
proof would be upon the appellant and not
upon the respondent wife to establish that
the allegations of fraud or collusion were
false. The conduct of the appellant even
subsequent to the date of decree of divorce
i.e. not disclosing this fact to the
respondent wife during the proceedings
under Section 125 CrPC, disentitles him
from any relief before this Court of equity.
No interference is required in the matter
and the appeal is liable to be dismissed.

12. It is evident from the above
that an ex parte decree against a defendant
has to be set aside if the party satisfies the
court that summons had not been duly
served or he was prevented by sufficient
cause from appearing when the suit was
called on for hearing. However, the court
shall not set aside the said decree on mere
irregularity in the service of summons or in
a case where the defendant had notice of
the date and sufficient time to appear in the
court. The legislature in its wisdom, made
the second proviso mandatory in nature.
Thus, it is not permissible for the court to
allow the application in utter disregard of
the terms and conditions incorporated in
the second proviso herein."

It then observed that the Delhi
High Court should not have interfered in the
Trial Court order and allowed the appeal.
9 All Pradeep Kumar Singh @ Atma Singh & Anr. Vs. A.D.J., Barabanki & Ors.
831

24. In Rajkumar Makhija (supra), the
Division
Bench
of
this
Court
was
considering whether the proviso to section
17 of the Provincial Small causes Court Act
completely
bars
any
rectification
or
removal of a bona fide error after the
expiry of the period of limitation when
substantial compliance by way of deposit
of the decretal amount and furnishing
security has been made within the period of
limitation particularly when Section 5 of
the Limitation Act 1963 has been made
applicable to Order IX Rule 13 of the Code
of Civil Procedure?

25.
 The
Division
Bench
was
considering a case where the cash amount
deposited
by
the
applicant
towards
pendante lite and future damages covered
only 117 months whereas the actually 125
months rent was liable to be deposited
under the Proviso to Section 17 of the Act.
The amount was found to be short for eight
months. The case of the applicant was that
monthly rent was Rs.700/- but the ex-parte
decree had wrongly decided the rate of
pendente lite and future rent as Rs.1000 per
month. The court observed on the basis of
judgement rendered by the Supreme Court
in the case of Kedarnath versus Mohanlal
Kesarwani (supra) that the defendant did
not file any application for permission to
furnish security instead of cash deposit.
The defendant applicant deposited rent at
the rate of Rs.700/- per month along with
the cost of the suit. The Court considered
the language of the Proviso to Section 17 of
the Act and observed that the applicant
must either deposit in the Court the amount
due from him under the decree, or in
pursuance of the judgement give a security
for the performance of the decree for
compliance with the judgement as the
Court may on a previous application made
by him in this behalf, have directed.

26. The Division Bench observed that
a Full Bench of Allahabad High Court in
Ram Bharose versus Ganga Singh 1931
ALJR 1049, was considering a case where
the application was accompanied with
security bond which was large enough to
cover the decretal amount. The Court held
that the application was filed within time
and the order for furnishing the security
was passed after 30 days, the proviso to
section 17 stood complied with. However
where shortfall in cash deposit was not
accompanied with any application for
depositing security large enough to cover
the decretal amount, such an application
should be rejected as the proviso to section
17 of the act is mandatory. The Supreme
Court in the case of Kedarnath (supra) had
observed the Objects and Reasons of the
1935 Amendment to the Act, and observed
that the proviso was couched in such
language which could not be treated to be
directory. The Court observed that the
proviso does not provide for the extension
of time by which an application for
dispensation of deposit in cash may be filed
along with an application for furnishing
security, however, it should be filed at any
time up to the time of presentation of the
application for setting aside ex parte
decree, or for review, and the Court may
treat it as a previous application. The
obligation of the applicant is to move a
previous application for dispensation. It is
then for the Court to make a prompt order.
The compliance of the proviso has to be
made by a person within a specified time,
that is prior to the filing of the application
for setting aside the ex parte decree. The
applicant is required to deposit the entire
amount due under the decree and also to
apply for furnishing security which will
cover the entire decretal amount in case of
any shortfall. If there is a shortfall, the
consequence would be that the proviso to
832 INDIAN LAW REPORTS ALLAHABAD SERIES
section 17 which is mandatory has not been
complied and the application would be
rejected. The court also considered the
applicability of Section 5 of the Limitation
Act to late deposit of the decretal amount.
It observed in paragraph 22 that it does not
apply to such deposit. The proviso to
section 17 talks about filing of a previous
application for furnishing security prior to
the application for setting aside the ex parte
decree. The period for limitation for filing
such application has been provided under
the said proviso.

27. The Division Bench considered the
observations made by the Supreme Court in
the case of Naseeruddin and others versus
Sitaram Aggarwal JT 2003(2)SC 56, and
observed that a similar controversy was being
dealt with by the Supreme Court and while
considering the Rajasthan Rent Control Act it
was observed that if there is a provision
giving power to the court to extend the
prescribed period of limitation and condone
the delay in default of payment of rent, the
court can condone the delay, but not
otherwise. A clear line of distinction has been
drawn between the provisions providing
applicability of Section 5 of the Limitation
Act to the deposits and the legal provisions
bereft of applicability of section 5 of the
Limitation Act, to such deposits. It was held
that where the statute does not provide either
for extension of time or to condone the
default in depositing the rent within the
stipulated period, the court does not have
power to do so. Where the Statute prescribes
a specific period within which the deposit has
to be made, provision of Section 5 of the
Limitation Act cannot be extended if the
default takes place. The Court observed that
there is no provision under section 17 of the
Act conferring power on the Court to
condone the delay in complying with its
conditions. It is not correct to say that Section
5 of the Limitation Act would still be
available to such person who has committed
default in making the full deposit and the
Court can condone the delay in making the
deposit. The Court considered the argument
raised regarding substantial compliance of the
proviso to section 17 of the Act but observed
that as per the language of the proviso if the
deposit made by the tenant falls short of
amount required to be deposited, the tenant
will be deprived of the benefit, even if
shortfall in such deposit was because of
tenant's ignorance or without any malafide
intention. There being a shortfall of the
amount required to be deposited, the
application for setting aside the ex parte
decree will not be maintainable, for want of
compliance of the proviso to section 17 of the
Act. In such a case even the bonafides of the
tenant are not relevant. What is required to be
seen is the amount that is not paid or
deposited on the due date. If the amount is
found to be small, which is of no
Consequence, the Court would be justified in
ignoring the said mistake by extending the
doctrine of ''de minimis non curat lex' to such
a case. As to what is the case deserving to
benefit of the aforesaid Rule is again a
question of fact to be decided on a case to
case basis. The Court considered that the
applicant before it had taken a conscious
decision to deposit the amount at a lower rate,
than the amount specified in the ex-parte
degree itself. This being so, it could not be
said by any stretch of imagination that there
was a compliance of the proviso to section 17
of the Act in any manner, or it is a case of
bonafide mistake or mistake in calculation.
The applicant had a duty to calculate the
correct decretal amount as per the decree and
the Court was not required to get the decretal
amount calculated for the applicant.

28. In the instant writ petition the
decretal amount had to be deposited along
9 All Shishir Patel Vs. U.O.I. & Ors.
833
with 12% interest incurred thereon from the
date of decree till the date of offer to
deposit. The writ petitioners had deposited
Rs.19,200
only
and
had
made
no
application to the court saying that they
were ready and willing to deposit security
for any amount which was further found
due on them. The Munsarim put up a report
that the amount that was offered by way of
application by the tenants was short by two
thousand rupees. The application should
have been rejected on this ground alone.

29. Having heard learned counsel for
the parties and having gone through the
order impugned, this Court is of the
opinion that learned District Judge has
correctly appreciated the fact as well as the
law, and there is no legal and factual
infirmity in the order impugned.

30. The writ petition is dismissed as
devoid of merit.

31. Costs made easy.
----------
(2021)09ILR A833
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.09.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAVI NATH TILHARI, J.

Misc. Bench No. 13940 of 2021

Shishir Patel ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sharad Pathak, Gaurav Shukla, Piyush
Pathak

Counsel for the Respondents:
A.S.G., Kumar Sambhav

A.
Words
&
phrases
-
legitimate
expectation - The law is settled that a
legitimate expectation, even wehn made
out, does not always entitle the expectant
to a relief. Public interest, change in
policy, conduct of the expectant or any
other valid or bonafide reason given by
the decision-maker, may be sufficient to
negative the legitimate expectation. (Para
23)

In pursuance to an advertisement issued by
the Indian Oil Corporation (IOC) for award of
Regular
Retail
Outlet
Dealership,
the
petitioner was given the opportunity to
provide
suitable
piece
of
land
at
the
advertised
location
vide
letter
dated
04.09.2019. Thereafter, the petitioner entered
into a lease agreement for 20 years on
rent/premium with a private person. The
Brochure classified the applicants into three
categories based on the land offered or land
not offered by them in the application. After
perusing the clauses of the brochure, The
Court is of the view that mere offer of land to
the IOC by the applicant may be in Group 1, 2
or 3 does not give rise to any legitimate
expectation to get the dealership of the Retail
Outlet as the offered land must be a suitable
land confirming to the specified criteria and
also satisfying other conditions with respect
to offering of land. Moreover, the company
reserve the right to cancel/withdraw the
advertisement, as it is sole discretion. (Para
22)

Furthermore, the Court find the reasoning given
by the Corporation to be valid and bona fide for
cancelling the subject location i.e., wrong
description and publication of the name of
district in the advertisement. The error in the
advertisement with respect to subject
location contravenes the principles of
fairness and transparency in the matter of
grant of dealership of the Retail Outlet.
(Para 24)

Writ Petition Rejected. (E-10)

List of Cases cited: